December 1, 1900.]
matter. He submitted that the only explana- tion was that when Fung Wah Chuen first lont that plan for the purposes in connection with the re-sale of the property to the defendant the plaintiff in good faith, having an imperfect knowledge of English figures, copied the figures intended to represent the area of the lots, understanding them to mean the length of the lots. The figures were written in such a situa- tion across the lots that they might be taken to represent the lengths. He contended that it was no answer to say that the purchaser had the means of discovering the error. The vendor was under no obligation to give the figures. The vendor, however, had given them and was consequently bound by them. With regard to the alleged inspection of the property by the defendant he contended that inspection would not necessarily saddle the person inspecting with any knowledge as to misdescription. He took it that an ordinary man not being an expert would be very far in error in computing the size of that court or the size of the site upon which the buildings stood. Mr. Sharp contested Mr. Francis's con- tention that this was not professedly a sale of so much per foot and that, therefore, the mea- surements given were not of much moment, argued that this was not a case in which dam. ages could be secured by the plaintiff, and as regarded the deposit of $6,000 he pointed out that it was expressly stipulated that if by any fault of the seller the contract was not com- pleted the deposit should be returned.
The further hearing was adjourned.
Wednesday, 28th November.
IN ORIGINAl JurisdictION.
BEFORE HIS HONOUR SIR JOHN CARRING- TON, C.M.G. (Chief JustICE).
CHIU WAH V. CHUE KAN.
In this case the plaintiff is a trader residing at 54, Staunton Street, and the defendant a clerk in the employ of Messrs. Deacon and Hastings, solicitors. It is a claim for the speci- fic performance of an agreement, the defendant counterclaiming for $6,000 deposited by him with the plaintiff.
Mr. J. J. Francis, Q.C. (instructed by Messrs Wilkinson and Grist) appeared for the plaintiff, and Mr. E. H. Sharp (instructed by Messrs. Deacon and Hastings) for the defendant.
The special jurors were Messrs. R. G. Shewan (foreman), A. Haupt, P. Jordan, S. Hancock, J. S. Van Buren, G. Stewart, and J. M. Beattie.
He was
The Chief Justice, in summing up, congratu- lated the jury on having arrived at the end of a long and somewhat difficult case. sorry it had taken them so long from their own businesses, but at any rate he hoped that now, having carefully listened to the evidence, having also had the assistance of able and elaborate addresses by the learned counsel on both sides, they would, with the little aid he could render them, be in position to return a right and just verdict between the parties in the case. He was afraid they would perhaps find difficulty sometimes in disentangling the truth from the great mass of cross-swearing which surrounded it. It frequently happened in these cases of hard swearing that there was some bit of documentary evidence which showed pretty clearly where the truth really lay. In this case he was sorry to say there was little if anything of that kind. The main points of conflict between the parties were as to whether or not the second memoran- dum was furnished by the plaintiff to the defendant; as to whether there was a personal inspection of the property by the defendant; as to whether a broker was employed by the parties in making the sale and purchase; and also with reference to the interview and inspec- tion of the map on the 26th September. On all these points there was a very great conflict of | evidence, and it was for the jury to try and make up their minds in reference to where the truth lay. His Lordship proceeded to state what were the points in the pleadings, and in touching on the law bearing on the case, said the plaintiff must show clearly to the satisfao- tion of the jury that in addition to the memo- rands the defendant used other means of knowledge and that, therefore, the effect of the misrepresentation in the memoranda was done
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CHINA OVERLAND TRADE REPORT.
away with. The plaintiff contended that the|ters of the lottery and is disclosed defendant relied not on the misrepresentation, certain stated and fixed time. but on a personal inspection which he made of the property and also of a plan which was shown to him and from which he was able to ascertain what the true dimensions of the property were be fore signing the agreement, or that at any rate by his inspection he must with reasonable care and intelligence have ascertained what the true dimensions of the property were. The plaintiff said the effect of the misrepresentation was done away with. It was for the plaintiff to prove this point to their satisfaction. His Lordship proceeded to state the historical points in the case, and in conclusion submitted the following questions to the jury:
1. Did the plaintiff, in the negotiations for the contract and prior to the signing of the agreement for the sale and purchase of the pro- perty in question, make to the defendant a material misrepresentation as to the dimensions of the property to be sold and purchased ?
2. If 80-
(a.) Did the defendant, in signing the agree- ment, rely on such misrepresentation ? or
(b.) Did he make a personal inspection both outside and inside of the property before the signing of the agreement ? and
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The ner receives thirty times the amount of his stake. Some little time before the dia closure of the winning characters, the head- quarters of the lottery issue a document called the Tas fa tai, which is supposed to be hint as to what the winning characters might be. Sometimes there is a connection between the Tex fa tai and the characters chosen, but it is clear from the evidence produced at the trial that the element of chance is never excluded from the competition. The most it does is to reduce the range of selection. No skill or judg- ment is required, and the lottery is entirely one of chance. It was contended by Mr. Reece, the solicitor for the defendants, that the warrant under which the defendants were arrested illegal and void for generality. The warrant
reads as follows :—
"Whereas it appears to me, the undersigned, one of the Justices of the Peace for the Colony of Hongkong, of my own knowledge or by the information on oath of J. W. Hanson, Chief Detective-Inspector, that a certain house and place at Id-i-mun, in this Colony, is kept or used as a Common Gaming House within the meaning of The Gambling Ordinance, 1891. (c.) If so, did he, in signing the agreement, This is, therefore, to require you, with such rely on the knowledge gained by such inspeo-assistance as may be necessary, to enter and, if tion ? or
necessary, to break into the said place and to arrest all such persons as may be found therein and to seize all cards, dice, balls, counters, tables, lottery tickets and other implements of gam- bling or which may be used as such, and also all monies or securities for money which shall be either in actual use for the purpose of gambling or be found upon the person of the keepers of such place, and the said implements of gambling and money to bring before a Magistrate, to be dealt with according to the Ordinance, and for so doing this shall be your warrant.
(d.) Was a plan containing the true dimen- sions of the property shown to him by the plain- tiff before the signing of the agreement and did he personally inspect such plan ? and
(e.) If so, did he by such inspection ascertain, or must he, with reasonable care and and intel- ligence, have ascertained, the true dimensions of the property?
The jury retired to consider their decision, and on their return the Foreman said they had unanimously come to the following conclusions: -The answer to the first question is yes. The auswer to the second question is yes. The an swers to question b. is no; therefore question c. does not require answering. The answer to question d. is yes to the word "Agreement" and no from the word "and" down to the words "plan and."
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The Chief Justice, accordingly, gave judg- ment for the defendant in the original action and also for the defendant in the suit on the counterclaim with costs.
THE LI-U-MUN GAMBLING CASE.
Mr. Hazeland delivered judgment in this case on the 23rd ult. as follows:-----
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Given under my hand and seal at Victoria, in the Colony of Hongkong, this twenty-fourth day of October, 1900.
(sd.) C. MELBOURNE,
Justice of the Pence.
In support of this contention Mr. Reece quoted the case of Lesch v. Money, 1765-19 St. Jr. 1001, which laid down the following pro- position :-A general warrant issued by a Secretary of State to search for and seize the anthor (not named) of a reditions libel is illegal.
Although the opinion of the Court was expressed in conformity with the proposition above stated, the case, it will be found, was devided on another ground. The warrant was to take up the author, printer, or publish- The four defendants were charged before me, er, but they took up a person who was under the Gambling Ordinance, 1891, for unlaw-neither author, printer, nor publisher. Thus fully being the keepers of a common gaming the case went off without any judicial decision house at the "Cheung Mau" shop in the vill on any of the points raised. age of Li-ü-mun in this Colony on the 24th October, 1900.
The first defendant, Lam Fuk, was also charged for that he unlawfully did assault Chan Hing, P.C. No. 420, in the execution of his duty at Li-ü-man in this Colony on the 24th October, 1900.
The second defendant, Chui Tsin Po, and the third defendant, Ip San. were also charged for that they unlawfully did assault Yan Chang, P.". No. 262, in the execution of his duty at Li-ü-mun in this Colony.
The defendants were all arrested on the 24th October, 1900, at the said village of Li-ü-mun, pursuant to a warrant issued under the Gam- bling Ordinance, 1891.
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In view of the definition of the word “plass" in the Gambling Ordinance, 1891, I am bound to hold that this warrant is not illegal and void for generality. It was further con- tended by Mr. Reece that as the lukongs who arrested the defendants had no warrant with them at the time of arrest, such arrest) was therefore null and void. It was proved in evidence that the warrant was in the pocket of Inspector Hanson, who was in charge, of the raid, and at the time of the ar- rest he was within sight of the village. Mr. Reece referred to the case of Reg. v. Chapman, 12 Cox_C.C. 4., the facts of which were very different from the present case. It is not necessary to refer further to the casÐ than to mention the fact that the warrant was issued in October, 1875, and was not execu- (1) That at the village of Li-ü-mun in thisted until January, 1881-an interval of over Colony, at the time of the arrest of the defen- five years—and that the warrant was probably dants, the lottery commonly called by the Chinese nowhere near the constable when he arrested Taz fu was being carried on at the said village. the prisoner Chapman. In connection with (2) That the headquarters of the said lottery the words " opened, kept, or used,” in the were at the "Cheung Mau" shop situate in the definition of the expression Common- gramE» said village of Li-ü-mun.
ing_house," Mr. Reece referred to the casS of Powell v. The Kempton Park Race Course Company, Limited, 1888., app. onsen 143. I am not able to see any analogy, between the case quoted and the present case. There abundant evidence to show that the " Mau" shop was “ opened, kopt, or med purposes of a lottery.
The following facts were proved to my satis faction:----
(3) That all the defendants were assisting in conducting the business of the said lottery at the said “Cheung Man” shop.
(4) That there was found in the said “ Cheung Mau" shop, at the time of arrest of the maid defendants, numerous documents and chops in connection with the Tas fa lottery;
The Tes fa lottery consists in the selection of a pair of characters from certain 36 pairs. The winning pair is chosen at the headquar-
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I hold therefore that the warrant and ́manner of executing the same were perfectly
legal.
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